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States now have details on how to develop EPA-approved coal ash disposal programs,
but environmental groups worry that the agency’s flexibility will allow utilities
to dictate disposal.

States had long been aware that their coal ash disposal programs must be at least
as protective as federal standards, but they had received few additional details until
the Environmental Protection Agency released
guidance Aug. 10. The EPA had announced in May it was developing a framework for those programs.

The guidance allows state directors to certify individual state coal ash disposal
facilities instead of only accepting certification from a professional engineer. State
directors would also be able to determine that cleaning up a released chemical is
unnecessary under certain conditions, and could determine how long cleanup remedies
take to complete.

The flexibility may result in more protective programs, said John Ward, spokesperson
for the American Coal Ash Association, which represents companies including Duke Energy,
Waste Management, CH2M Hill, and LafargeHolcim.

“The current EPA regulation is a one-size-fits-all set of standards that ignores regional
differences in geology, weather, disposal practices, and more,” he told Bloomberg
BNA.

Frank Holleman, senior attorney at the Southern Environmental Law Center, told Bloomberg
BNA he’s concerned that “flexibility,” which is part of existing waste regulations
but applied to coal ash in the guidance, will allow utilities to influence states’
programs.

A spokesman for Duke Energy, an electric, renewable, and natural gas utility, told
Bloomberg BNA it welcomes the agency’s guidance

“It seeks to provide much needed clarity for states working to implement the federal
standards and establish programs that facilitate the safe closure of ash basins,”
said Sean Walsh.

According to Walsh, Duke Energy is closing ash basins across their system and building
permanent ash storage facilities.

Benefits and Drawbacks

Jim Roewer, director of the Utility Solid Waste Activities Group, said the group is
pleased to see flexibility in the guidance. The industry association represents energy
and utility companies and other associations, including the American Gas Association
and National Rural Electric Cooperative Association.

“This really takes that judgment away from the qualified professional engineer, and
invests in the state director of the program the responsibility or the ability to
dictate what the standards will be in the permit,” he told Bloomberg BNA.

Holleman, who handles coal ash cases, said he worries the influence utilities wield
in state legislatures could convince states to make coal ash disposal programs too
lenient, and not protective of human health or the environment.

“The influence of the utilities with state agencies is very, very powerful,” he told
Bloomberg BNA.

States’ Duties

States will be responsible for showing the EPA that their programs are at least as
protective as the federal benchmark.

Bill Hayden, spokesman for Virginia’s Department of Environmental Quality, said it
was too early to say how or if the non-binding guidance document would affect state
programs.

“We do expect that it will be helpful as guidance,” he told Bloomberg BNA.

To gain federal approval, states must be able to show they can determine whether coal
ash storage owners and operators are complying with state requirements. States also
must show they can monitor or test them for compliance, and can enter sites for inspections,
sampling or to review operation records.

According to the interim guidance, the EPA generally expects states to develop permit
programs before seeking federal approval, but has not set deadlines for any of those
actions. The agency expects to update the guidance document as its receives feedback
from states.

The 2016 Water Infrastructure Improvement for the Nation Act delegates coal ash disposal
permits to states. EPA has 180 days to act on a state’s application for approval and
must provide an opportunity for public comment.

Roewer and Ward said the state permit programs are an improvement on previous coal
ash disposal enforcement, which was carried out through citizen suits.

In May, the EPA promised states a “swift” review of states’ applications.

To contact the reporter on this story: Sylvia Carignan in Washington at
scarignan@bna.com

To contact the editor responsible for this story: Rachael Daigle at
rdaigle@bna.com

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